Labor union dissenters influence political speech more than shareholders
Reuters) – Scathing commentary about the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission has tended to focus on the court’s refusal to restrict corporate political spending. As you know, the justices struck down campaign finance reforms as an unconstitutional violation of corporations’ free speech rights, triggering an avalanche of predictions that corporate donors would wield outsized political influence. The other free speech beneficiaries of Citizens United – labor unions also subject to the invalidated campaign finance restrictions – haven’t been the subject of nearly as much fear and loathing.
That’s going to change, at least a little, later this term when the Supreme Court hears Friedrichs v. California Teachers Association. As the merits brief from Rebecca Friedrichs and several of her fellow California teachers and school administrators explains, state law requires that public school educators either join the union or pay “agency fees” they contend are roughly the equivalent of union dues. Friedrichs and the other plaintiffs, represented by Jones Day and counsel of record Peter Fagen of Fagen Friedman & Fulfrost, contend that the law requires them to subsidize the union’s political pronouncements, in which their brief calls “the largest regime of compelled political speech in the nation.” They want the Supreme Court to hold that the First Amendment prohibits agency fees or, at the very least, prohibits fees used for political speech unless non-union members explicitly authorize that spending.
The union and its counsel of record, David Frederick of Kellogg Huber Hansen Todd Evans & Figel, argue the Supreme Court established in the 1977 Abood v. Detroit Board of Educationthat unions can collect agency fees from non-members who benefit from collective bargaining agreements and other union procedures. In Abood and subsequent decisions, the union brief said, the Supreme Court has endorsed frameworks permitting non-union members to opt-out from union fees unrelated to collective bargaining and other common benefits. California has just such an opt-out regimen for non-union teachers, the brief said, so they’re not compelled to pay for political speech at all.
This case is obviously of huge consequence for unions, especially because the non-union teachers want the Supreme Court to roll back its own Abood precedent on agency fees. But a really interesting amicus brief Friday by an illustrious bunch of corporate law professors explains why the teachers’ First Amendment litigation should inform future consideration of corporate free speech and political spending.
The essential message of the brief is that the Supreme Court equated political spending rights of corporations and unions in Citizens United, yet has not treated equally those who actually Labor union dissenters influence political speech more than shareholders: law profs to SCOTUS:
